#4 - Fair Use Defenses - Parody law, Transformative works,and Derivative works
The following article is a transcript of Episode 4 of the Fan Art Series on Don't @ Me Podcast. ✨Listen Here✨
Disclaimer: I am not a lawyer, have never or do not have the intention of studying law, therefore I’m not qualified to give legal advice. This is just presenting research and providing commentary. Please seek official legal advice for thorough information and representation if you want more information about anything said in this podcast.
G’day and welcome to episode four of the Fan Art Series on Don’t @ Me!
I’m your host, Mikaela Copland and today I’m unpacking some common defenses in copyright law. We’ll be looking at fair use, parody law, derivative works and transformative law mainly from the perspective of the law in the United States.
Firstly, let’s go over the buzzword in copyright law, fair use. The United States Government claims you can use the defense of fair use for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.
A judge would look at the four factors to well, judge it.
The purpose and character of your use. For example, did you add something meaningful to the preexisting work?
The nature of the copyrighted work. Is it appreciative of the original work, are you making fun of it, is it distasteful?
The amount and substantiality of the portion taken, how much of the character you used e.g if you used Sonic the Hedgehogs outline but not the whole figure.
The effect of the use upon the potential market. How many sales have you taken or would you take in competition with the original owner?
Going further into parody law, it isn’t a defense on it’s own. It’s a part of your bigger copyright defense of fair use.
To quote Wikipedia, parody is when you “use a work in order to poke fun at or comment on the work itself.” Red Bubble Creator Byron who wrote a series on copyright said it best: "Simply being funny, witty, or otherwise humourous is not enough to satisfy the legal definition… it must be both funny and make a statement about the original work.”
Okay so I can already hear you saying, "Hey Mikaela, I read somewhere years ago that you need to change a work by some percentage for it to be original, or transformative."
Transformative works need to give us a new vision of a familiar character. To quote the US Government; "Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work."
So, in plain terms, drawing a preexisting photo of Lady GaGa and selling it on merch is not transformative. But what if you draw an original outfit of your creation onto Lady GaGa?
You added something new right? You changed a percentage so it’s automatically transformative right? But I’m going to drop another bombshell...
Have you heard of derivative work?
Because this part of the law usually puts that theory to rest.
The United States Government states “A derivative work is a work based on or derived from one or more already existing works." Aka, if your work has a core identifiable element that is copyrighted by another person, then it is still illegal.
If the average person could point to your work and say “Hey that’s so and so” or “That’s inspired from blah blah”, then it’s probably derivative work.
Finding out about derivative law is probably the most devastating part of copyright law for fan artists. Because you can’t make fan art without it being a tribute to something. If someone can’t identify the thing you’re appreciating in the work, then essentially you’ve failed.
The whole point is to reproduce the copyrighted work in a new light.
So essentially, the whole point of fan art is illegal.
Whether it’s for profitable purposes or you’re just recreating it for your own personal fun, it’s illegal.
Some people also mistakenly believe you’re allowed to use work if you acknowledge or credit the original owner. This can look both favourable and undesirable in court. As on one hand you’re acknowledging it’s not your work and pointing people in the direction of the original artist. However, you are also admitting that you used work, knew the original creator and didn’t ask for permission. Tough one there.
But let’s back track.
First I said adding something makes it transformative, but then I said including the identifiable elements still makes it illegal?
Where is the line drawn?
Spoiler: it’s up to a judge.
It’s a case by case basis on what is transformative and protected under fair use and what’s not. However, quoting Plagiarism Today, "most fan creations, by their very nature, don’t parody or criticize the source material, which would provide a great deal of protection, nor are they highly transformative, meaning that they are less likely to win in the event that such a suit takes place."
So it’s one thing blatantly saying your work is transformative, but you’d have to prove it in court....against one big corporation or celebrity. And don’t get me started on the legal fees - for both parties.
Here you can see why some businesses neglect fan art due to the tit-for-tat nature that it would bring in court.
However, again, they can get around this through hitting small artists all in one.
How? Well, through websites like Redbubble, Etsy and DeviantArt.
We’ll be looking at how these platforms approach fan art and copyright claims in the next episode.
If you have any questions you want me to research, please DM me on my instagram @dontatmepodcast or via the contact form on my website. Catch ya in the next episode.